DR Distribs., LLC v. 21st Century Smoking, Inc., No. 12 C 50324, Slip Op. (N.D. Ill. Dec. 15, 2015) (Johnston, Mag. J.).

Judge Johnston denied defendants’ motion to compel the deposition of plaintiff’s prior trademark prosecution counsel.

Citing the “goose-and-gander” and “same monks, same haircuts” rule, the Court sought to be consistent in its ruling across this case, as well as across the Court’s cases more generally, to the extent possible. The Court set a fact discovery deadline and, after extending it several times, warned the parties that it would not be extended further. The deposition at issue was originally scheduled during the discovery period, but the parties agreed to reschedule to an undetermined date after the close of discovery. Months later and after discovery closed, defendants sought to compel the deposition. The Court held that Fed. R. Civ. P. 16(b)(4) – requiring good cause to modify the Court’s scheduling order, as well as diligence – was not met in this instance. Defendants were not diligent in pursuing the deposition. They were aware of the deponent in at least March 2013. In March 2015, the Court extended discovery for the last time until July 2015, warning the parties further extensions would not be granted. Despite that warning, in late June 2015 the parties agreed amongst themselves to extend the deadline for the deposition at issue. Furthermore, the Court previously denied plaintiff’s motion to amend its affirmative defenses because plaintiff waited eight weeks before seeking to amend. The parties’ agreement was not effective pursuant to Rule 29 and defendants’ motion was not diligent pursuant to Rule 16(b)(4).